House lawmakers will get the chance this week to grill a key Interior Department official on whether there was any political manipulation in the decision to list the polar bear as a threatened species.

Lyle Laverty, a political appointee who serves as Interior’s assistant secretary for Fish and Wildlife and Parks, is scheduled to appear before the House Natural Resources Committee.

The hearing is a follow up on an investigation committee Chairman Nick Rahall (D-W.Va.) started after Julie MacDonald, a deputy assistant secretary for Fish and Wildlife and Parks, resigned in the wake of a scandal that linked her to meddling in and editing scientific decisions on endangered species issues.

Lawmakers will take a broad look at political influence on endangered species decisions, Rahall said in an interview last week. But given that it is following on the heels of the polar bear listing decision, questions about the bear would likely be a focus.

“Decisions in regard to ESA should always be based on sound science and not politics,” Rahall said. “I am sure it will be an item for discussion.”

Laverty has been a key figure in the polar bear decision. In court filings submitted in response to the lawsuit over the listing, Laverty described months of back-and-forth discussions over the listing among Interior lawyers and representatives in his office.

Interior Secretary Dirk Kempthorne announced last week he would list the polar bear as threatened under the Endangered Species Act. The listing is based on threats to the bear from the effects of climate change on its polar habitat, but Kempthorne specified that it should not allow the regulation of greenhouse gas emissions linked to warming temperatures.

The agency included a special rule to allow continued development of natural resources in the Arctic and power plants in the lower 48 states. That rule ignited the outrage of some Democrats on Capitol hill, including Rep. Jay Inslee (D-Wash.), who sits on the Natural Resources Committee.

“This is a fraud,” said Inslee. “The administration effectively decided to make a listing, but said it wouldn’t make a difference in government action. That’s not a listing, it’s a cop out.”

The announcement came after multiple delays and lawsuits to force protection of the bear. Environmentalists and several Democratic lawmakers – including Inslee – have suspected the administration was stalling to try to avoid protecting the bear, or to allow oil leasing in its habitat in Alaska’s Chukchi Sea to go forward. Administration officials have maintained they were just trying to complete a thorough review of a very complicated listing.

Questions for lawyers?

The listing decision was originally mandated by law for early January, but Interior officials postponed it until a lawsuit forced them to complete the decision last week. Kempthorne said last week that the January postponement was necessary because the agency needed time to complete its analysis of the scientific data.

In court filings about the polar bear listing, Laverty described a back-and-forth process among agency lawyers in D.C. while the listing stalled.

The Alaska field office sent its draft final listing recommendation to Washington on Dec. 14. On the basis of that recommendation, Fish and Wildlife Service officials developed a draft listing determination, which they completed in early February. That decision “raised various factual and legal issues” with the Office of the Solicitor, according to Laverty’s legal filing.

Interior then developed a working group with staff from both FWS and the solicitor’s office. That group concluded its work in mid-February, and FWS Director Dale Hall approved their recommendation. The decision then went to Laverty, who sent it back to the solicitor’s office for further review.

“I am informed that public comments and internal departmental review of this listing determination raised significant and complex factual and legal issues,” Laverty wrote in his court testimony.

Among the questionable items, Laverty said, were the reliability of data used for the listing and the degree of uncertainty around the climate modeling tools. Before the final listing was released, Laverty’s office and the solicitor’s office continued to review it.

“These are not questions for lawyers, these are factual questions for scientists in the field office,” said Kassie Siegel of the Center for Biological Diversity, one of the groups that sued the administration to force the listing.

GAO investigation

The panel will also hear from the director of natural resources at the Government Accountability Office, the general counsel at the National Oceanic and Atmospheric Administration and wildlife experts from nonprofits and universities.

GAO is also expected to release this week new findings in its review of Interior’s self-review of its endangered species listing program. FWS is revising several rulings MacDonald was involved in and developed a new policy intended to keep scientific decisions from reaching political levels.

After years of delay, Secretary of the Interior Dirk Kempthorne made a landmark decision on whether global warming pollution is regulated by the Endangered Species Act (ESA). Kempthorne ruled that the polar bear should be classified as a “threatened species” due to the decline of polar sea ice, critical to its survival. Kempthorne stated:

They are likely to become endangered in the near future.

The Department of Interior, under Secretary Dirk Kempthorne, fought for several years in the courts since 2005 to avoid making a decision on whether the precipitous decline in Arctic sea ice due to global warming is making the polar bear an endangered species. Fish and Wildlife Service director Dale Hall testified in January that there was no significant scientific uncertainty in the endangerment posed by global warming to polar bears—the only legal justification under the Endangered Species Act for a delay.

Kempthone’s decision to follow the science is in marked contrast to Environmental Protection Agency Administrator Stephen Johnson’s action to override his staff in refusing to regulate tailpipe greenhouse gas emissions.

Kempthorne complained that the Endangered Species Act is “one of the most inflexible” pieces of legislation because it didn’t allow him to consider economic impacts when protecting species like the polar bear from extinction.

To make sure the ESA is not misused to regulate global climate change, Kempthorne promised the following actions:

The U.S. Fish and Wildlife Service is proposing a 4(d) rule that states that if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the ESA with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.

Director Hall will issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project or government action.

The Department will issue a Solicitor’s Opinion further clarifying these points.

The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.

Andy Revkin at Dot Earth concludes, “So this leaves everything as it was, in a way, with the bears facing a transforming ecosystem and environmentalists successful in their litigation, but not necessarily empowered by the listing.” At Climate Progress Joe Romm calls the decision “bye-polar disorder.”

Sierra Club spokesman Josh Dorner tells the Wonk Room, “This is the regulatory equivalent of a signing statement—only this one gets to be challenged in court.”

On Thursday March 20, Sen. Boxer (D-Calif.), chair of the Senate Environment and Public Works Committee, sent a letter to Secretary of the Interior Dirk Kempthorne asking him “to appear before the Committee as soon as possible for an oversight hearing” on the “considerable delays in taking final action” over the Endangered Species Act listing of the polar bear. Boxer told him that the hearing would be planned for April 2 or 8.

The following day, Lyle Laverty, Assistant Secretary for Fish, Wildlife, and Parks, faxed back a response at 5:56 PM saying:

I understand Secretary Kempthorne called you on March 17, 2008, and expressed his commitment to testify before the Committee on the polar bear proposal once a decision is made on the issue. I also understand the Secretary committed to calling you on Tuesday, April 1, 2008, with an update on the progress towards a decision.

Boxer immediately responded, calling the offer of a telephone briefing and a hearing after a decision has been made “wholly inadequate,” and again requested the April 2 or 8 date for a hearing discussing “this serious breach of the Department’s duty to follow the law.”

It has been nearly a month since FWS director Dale Hall stated in a House Appropriations Committee hearing that he had submitted his decision on the polar bear listing to Secretary Kempthorne.

This is crossposted from the newly launched Think Progress Wonk Room, which will be covering policy news from climate change to national security. The issues covered by Hill Heat writer Brad Johnson will enjoy deeper coverage at the Wonk Room, where he is now a full-time staffer.

The Interior Department’s internal watchdog said today it has begun a preliminary probe of the delayed polar bear decision.

Responding to requests from environmental groups, the Inspector General’s Office official said its preliminary review will determine if there is a need for a full investigation.

The Sierra Club, Alaska Wilderness League and four other organizations requested a review by Inspector General Early Devaney, claiming the delay violates the Fish and Wildlife Service’s scientific code of conduct and rules of the Endangered Species Act by allowing MMS to proceed with Chukchi lease sales.

Sixty days have now passed since January 8, 2008, when the U.S. Department of the Interior failed to meet its legal deadline to determine whether the polar bear is endangered by global warming, triggering a joint lawsuit over this latest delay from the Center for Biological Diversity, NRDC, and Greenpeace, pursuant to the notice of intent filed in January.

In addition, Rep. Ed Markey (D-Mass.), chair of the House global warming committee, today introduced legislation to block further activity in the lease sale area. This legislation, which does not yet have a bill number, is a revision of his proposed legislation from January, before the lease sale took place. The amended legislation would now prevent the Secretary of the Interior from authorizing any “related activity (including approving any seismic activity, offering any new lease, or approving any exploration or development plan)” until an ESA determination and critical habitat designation is made.

At last week’s House Appropriations hearing on the FY 2009 Fish and Wildlife Service budget, FWS chief Dale Hall was grilled on the service’s implementation of the Endangered Species Act. The Bush administration has listed dramatically fewer species than previous administrations after dramatically reinterpreting the Act under Secretary Gale Norton’s “New Environmentalism” initiative to limit its protections for critical habitats. Further, Deputy Secretary Julie MacDonald was found to have interfered with a series of listing decisions (such as the prairie dog and sage grouse) until her dismissal in 2006.

Hall stated that he finally submitted his decision on the endangerment of polar bears due to climate change to Dirk Kempthorne, the Secretary of the Interior, saying that he expected a final decision to come in a few weeks. Hall justified the further delay to reporters: “It needs to be reviewed and explained to Interior, it can take a while to understand.”

On February 27, the Center for Biological Diversity announced a lawsuit protesting the FWS’s illegal delay on considering the endangerment of ten species of penguins:

The legal deadline at issue in today’s suit was triggered by a scientific petition the Center filed in November 2006 seeking Endangered Species Act protection for many of the world’s most threatened penguin species, including the emperor penguin in Antarctica. In July 2007, the U.S. Fish and Wildlife Service took the first of the three steps in the listing process when it found that 10 penguin species may deserve protection and began status reviews for those species. The Fish and Wildlife Service’s finding for the 10 penguin species triggered the duty to decide by November 29, 2007, whether the penguins qualify for listing under the Endangered Species Act, and if so, to propose them for listing. That decision is now more than two months overdue.

Ben Chandler (D-Ky.) I know that you all have talked some about the alarming loss of common birds in our country. Alarming it is. I almost can’t believe it. The numbers that I’ve seen are absolutely atrocious. And one thing that I’d like to explore with you real quick, the Audubon Society has stated that the cause of the dramatic decline of birds is the outright loss of habitat due to poor land use, the clear-cutting of forests, the draining of wetlands and sprawl.
Now, in light of such a stinging indictment as that, how does the administration justify a 70 percent cut in land acquisition?

Hall I don’t know.

Norm Dicks (D-Wash.) That’s a good answer.

Chandler That’s one of the best answers I’ve heard in a while, because I think that’s accurate. I appreciate that.

The Interior Department will decide this year on proposed endangered species listings for 71 species, a nearly tenfold increase in the number of species listed in the Bush administration’s first seven years.

Fish and Wildlife Service Director Dale Hall told a House panel yesterday that the administration would chip away at a backlog of hundreds of species awaiting protection. The service will decide on listings for 71 species this year and 21 more in 2009.

There are more than 280 species on the candidate list, whose listing is “warranted but precluded” because of lack of funding or other higher priorities, federal scientists say. And there are hundreds of additional plants and animals on whose behalf environmentalists have filed petitions.

Among species the agency plans to consider this year: the sand dunes lizard, three kinds of mussels, two snails, insects and dozens of plants.

The effort marks a turnaround for the administration that has hesitated to list any new plants or animals. President Bush’s Interior Department has listed only eight species – compared with 62 by the Clinton administration and 56 under President George H.W. Bush. All eight listings came in response to lawsuits.

If the agency decides to protect any of the 92 species on its list for determinations, the long timeline for such considerations would likely move final decisions to the next administration.

“It took us a little bit, but we hope this will help us to get on track,” Hall said. “We slipped out of the mode.”

Environmentalists have criticized the administration for its hesitance in listing species and said that while this announcement is welcome, there would still be a backlog of hundreds of species.

“I think it certainly indicates a little movement, but this is long overdue movement,” said Bill Snape of the Center for Biological Diversity, which has petitioned and sued for the protection of hundreds of plants and animals under ESA.

“I guess that’s a decent baby step, but the listing program has so many problems associated with it, it is really hard to be overjoyed at this point,” Snape added.
In wake of scandals

The service is acting after the Interior inspector general found that the department’s deputy assistant secretary had edited scientific decisions on endangered species. The agency is revising seven rulings that former Deputy Secretary Julie MacDonald was involved in, and Hall said the service has a new policy to keep scientific decisions from reaching political levels.

“The department has allowed me to separate and have the science stop with the director of the Fish and Wildlife Service,” Hall said yesterday. “It should not be creeping up to non-scientists.”

The service director is a political appointee required by law to have a background in biological sciences. MacDonald had a degree in civil engineering and no formal education in natural sciences.

‘Weeks’ until polar bear decision

The administration’s most high-profile listing decision, the polar bear, should be made “within weeks,” Hall said. He said the service has completed its work and the Interior Department is reviewing the decision.

“It needs to be reviewed and explained to Interior, it can take a while to understand,” Hall told reporters.

If listed, the polar bear would be the first mammal protected under ESA because of global warming. Hall said the agency has been “trying to make the decision the best it can be,” but still expects legal challenges.

“We expect a lawsuit no matter what decision we make on almost anything,” Hall said.

A Los Angeles Times op-ed penned last weekend by MMS director Randall Luthi, The Bear Necessities, defends the lease sale, claiming that “under the Marine Mammals Protection Act, the bear currently receives regulatory protections even stricter than those available under the Endangered Species Act.” This statement ignores the critical habitat provisions of the ESA which could prevent such actions as the lease sale.

Last week MMS officials sent a cease-and-desist order to Public Employees for Environmental Responsibility, who earlier published “a series of internal e-mails from current and former Interior scientists raising troubling questions about how badly environmental assessments of Arctic offshore oil development were skewed.”

In today’s Senate Environment and Public Works Committee hearing on the Fish and Wildlife Service’s now-illegal delay in ruling whether polar bears are an endangered species, Sen. Boxer (D-Calif.) sharply rebuked the FWS director Dale Hall. She noted that the Alaska field office sent a recommended decision to Hall on December 14th of last year. Hall refused to discuss the recommendation, saying it would be “inappropriate” to discuss internal deliberations.

Hall gave as his only reason for the delay past the January 8 deadline the need to present a “high-quality” decision that responds in full to the voluminous public comments received. He stated that there was no significant scientific uncertainty in the endangerment posed by global warming to polar bears, the only reason for delay the Endangered Species Act permits. Under repeated questioning from Sens. Boxer and Lautenberg (D-N.J.), Hall said he wanted to present a decision, if possible, by February 6th.

Hall noted that in many ways the Marine Mammals Protection Act provides stronger protection than the Endangered Species Act for polar bears even if a finding of endangerment were made – a claim criticized by Andrew Wetzler of NRDC, who noted that the MMPA does nothing to protect critical habitat, the matter which would affect the planned sale of drilling rights in the Chukchi Sea.

MMS Speaks

On that front, Ben Gemen reports for E&E News that Minerals Managment Service director Randall Luthi said any delay of the scheduled February 6 sale of Chukchi Sea leases would prevent any oil-and-gas exploration in 2008. However, he also stated that the agency position is that:

there is no need for a delay, regardless of what FWS decides. He said that even in the absence of a listing, energy development is accompanied by several layers of environmental review and safeguards, including collaboration with FWS and the National Marine Fisheries Service.

Kerry Moves to Block

Meanwhile, Sen. Kerry (D-Mass.) introduced legislation yesterday that would block lease sales in the Arctic until Endangered Species Act decisions are made on the polar bear and its critical habitat, mirroring Rep. Markey’s (D-Mass.) proposed legislation in the House.